R v Bagri, 2016 ABQB 119

Court of Queen’s Bench of Alberta Citation: R v Bagri, 2016 ABQB 119 Date: 20160229 Docket: 121309215Q1 121226039Q1 Registry: Calgary Between: Her Majesty the Queen Crown/Respondent - and - Parvinder Singh Bagri Accused/Applicant - and - Calgary Police Service Third Party

Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1). Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict. Preliminary Inquiry – See the Criminal Code,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. UPDATE – This matter has concluded and accordingly, the above publication bans have expired.

Personal information in this decision has been redacted as indicated by [...] in the text so that it may be published. _______________________________________________________ Memorandum of Decision on Disclosure Application of the Honourable Madam Justice E.A. Hughes _______________________________________________________ [ 1 ] The Applicant/accused, Parvinder Singh Bagri, is jointly charged with three other persons on Indictment #121309215Q1.

That Indictment alleges a number of offences including trafficking in controlled substances, conspiracy to traffic in controlled substances, weapons offences and criminal organization offences. In addition, Mr. Bagri is charged with three different persons with proceeds of crime offences, Indictment #12126039Q1. Both Indictments are prosecuted by the Public Prosecution Service of Canada (PPSC or the Federal Crown). [ 2 ] All charges arose out of a police investigation – “Project Alderman”. During the course of the investigation, the police obtained two wiretap Authorizations.

The first – PA 1658, was granted on February 15, 2012. The affiant was Cst. D. Soetaert, a member of the RCMP. [ 3 ] Exhibit “C” of Cst. Soetaert’s affidavit in support of the Authorization states as follows: In the interest of fair, full and frank disclosure I wish to inform the issuing justice of the following information:

a) Earlier this year Justice Park granted

Part VI authorizations which were filed at Calgary, Alberta for a separate homicide investigation. Bagri is named as a principal known person in that investigation. I wish to inform the issuing justice of this existence of this investigation, and advise him/her that as part of the homicide investigation, listening devices may be installed at [text redacted] 11 th Avenue SE, and Phone number 403-971-[text redacted] (Bagri’s phone) is currently being intercepted as part of that authorization. [ 4 ] Mr.

Bagri seeks the disclosure of the Authorizations and affidavits in support, intercepted communications, and any reports, notes, communications, assessments and any other records concerning him arising from the

Part VI Authorization granted in the above described homicide investigation. This investigation is named “Project Chillin”. [ 5 ] The first step in this disclosure application is to determine whether the materials sought by Mr. Bagri are first party records, governed by R v Stinchombe. Facts

[ 6 ] The factual underpinnings of this application are found in materials filed by the parties and include: 1. an overview of the investigation found in the Report to Crown Counsel; 2. the affidavit filed in support of PA 1658, an Authorization obtained in Project Alderman; 3. evidentiary excerpts from Mr. Bagri’s preliminary inquiry; 4. correspondence between the PPSC and counsel for Mr. Bagri; 5. the disclosure table of contents provided in Project Alderman; 6. the affidavit of Sgt. Barry McCurdy for the RCMP; 7. the affidavit of Cpl.

Brian Lissel of the RCMP. [ 7 ] The Report to Crown Counsel provided an overview of the genesis of Project Alderman. It states: This organized crime group first came to the attention of investigators late in 2010 and early 2011 as a result of the considerable efforts of the Calgary Police Service Dust 40’s (DUST40s) Drug Undercover Street Team who obtained buy numbers for the group (buy numbers are the phone numbers the group uses to conduct drug transactions).

They were successful in making purchases but in the process realized that they had become linked to a group that utilized planning, scheduling and hierarchy to move considerable quantities of narcotics into the streets of Calgary and area. It is believed that this organization is moving three to five kilograms of cocaine per month onto the streets of Calgary and area.

In 2010 investigative efforts by Calgary Police Service Homicide Unit in relation to a homicide from 2009 linked their person of interest Parvinder Bagri to Kalwarn Dhillon and the group that had come to the attention of the DUST40s in Project Duplicity. The Alberta Law Enforcement Response Teams (ALERT), Calgary Combined Forces Special Enforcement Unit (CFSEU) and Organized Crime Team (ORT) entered into an independent intelligence gathering phase targeting Parvinder Bagri and Kalwarn Dhillon based on the information obtained from the two previous investigations.

CFSEU surveillance resources were utilized to obtain lifestyle information as well as to identify any criminal activity the two targets may be involved in. Surveillance was able to identify that neither target was engaged in legitimate employment. Parvinder Bagri is the director of a towing company A-Star Towing but he is not engaged in that business on a daily basis. [ 8 ] The overview, the affidavit in support of PA 1658 and the affidavit of Sgt.

McCurdy set out that investigators from the Calgary Police Service (CPS) and the RCMP conducted this investigation as a joint forces operation under the Alberta Law Enforcement Response Team (ALERT). [ 9 ] Sgt. McCurdy was the primary investigator of Project Alderman. He stated in his affidavit sworn November 26, 2015: As the Primary Investigator on Project ALDERMAN I was aware that there was an unrelated

Part VI investigation underway by the Calgary Police Service where Parvinder BAGRI was a Principal Know[n] Person. I believe this investigation was named Project CHILLIN. [ 10 ] One of the other team members was Cst. Soetaert, the affiant for PA 1658. [ 11 ] Cst. Soetaert advised he obtained surveillance information from Det. Fleet, one of the members of the homicide investigation, which is a CPS investigation. The information was that surveillance was conducted by the Strike Force Unit of the CPS between December 3, 2010 and February 14, 2011. Mr.

Bagri and his co-accused on Indictment 121309215Q1, Kalwarn Singh Dhillon, appear to have been the primary targets of this surveillance. The information permitted Cst. Soetaert to obtain two addresses associated with Mr. Bagri. [ 12 ] The Cst. Soetaert’s affidavit summarizes the surveillance conducted on Mr. Bagri with respect to Project Alderman, as well as police inquiries and contacts other police had to obtain information about Mr. Bagri between August 4, 2011 - February, 2012. [ 13 ] The affidavit also sets out that Mr.

Bagri moved from an address at [text redacted] 12 Avenue SE at the end of January 2012, and moved into [text redacted] 11 Avenue SE on or about February 6, 2012. This information was obtained from speaking with various people and the surveillance set out in paragraphs 83-92 of the affidavit in support of the Authorization. [ 14 ] PA 1658, which as noted above was granted on February 15, 2012, disclosed that a

Part VI Authorization had been granted in 2012 with respect to Mr. Bagri and the homicide investigation, Project Chillin; as part of that investigation, listening devices “maybe installed at [text redacted] 11 th Avenue SE”. [ 15 ] Sgt. McCurdy swore in his affidavit at paragraphs 6-9: 6. As the Primary Investigator for Project ALDERMAN once PA 1658 was authorized I made requests through Calgary RCMP Special “I” to have the devices which included 403-971-[text redacted] hooked up as authorized.

I also made requests to have audio equipment installed in the places named in PA 1658 which included [text redacted] 11Avenue SE and the Chevrolet Malibu [text redacted]209 AB. 7. I was informed that RCMP Special “I” had previously installed audio equipment in [text redacted] 11-Avenue SE and the Chevrolet Malibu [text redacted]209 AB for Project CHILLIN. As the Project ALDERMAN authorization also included these places and the devices an additional connection for Project ALDERMAN was completed by RCMP Special “I”. It would not have been practical or

in the public interest to risk additional installment and the Project ALDERMAN authorization (PA1658) allowed ALDERMANinvestigators legal access. 8. Prior to PA 1658 Project ALDERMAN Investigators had no access to these devices or locations and were not privy to any of theintercepts obtained. When Project ALDERMAN Investigators obtained access to intercepts from these devices and places the interceptswere routed through the RCMP line room in Winnipeg, Manitoba to insure there was no crossover with Project CHILLIN investigationwhich was routed to Calgary.

The Project ALDERMAN lines were always maintained separate from any other investigations eventhough the specific device or equipment was common. 9. After 30 days the Project ALDERMAN intercepts were routed through Calgary. At this time line room personnel maintained theseparated intercepts on each file. Project ALDERMAN Investigators were never in a position, nor did they ever have access to ProjectCHILLIN intercepts. [16] Cpl.

Lissel, a member of the RCMP and assigned to the Special “I” section, advised he installed an audio probe at [textredacted] 11 Avenue SE on January 30, 2012 pursuant to the Authorization granted under Project Chillin. On February 10, 2012 heinstalled another audio probe in a Chevrolet Malibu vehicle, Alberta License Number [text redacted]209, again under the Authorization,Project Chillin. This vehicle was associated to Mr. Bagri. [17] Cpl. Lissel also advised commencing February 15, 2012, audio communications from both probes “... were intercepted andrecorded in the CenCis 11 System at Calgary Special “I”

section under “Project Alderman””. [18] The Designated Agent who applied for the Project Chillin Authorization is a prosecutor with the Provincial AttorneyGeneral’s Specialized Prosecutions Office. [19] In June 2015, Mr. Bagri through his counsel sought: 1.) the wiretap authorizations obtained by the Provincial Crown; 2.) allapplications and Affidavits in support; and 3.) copies of all transcripts and or recordings of any intercepted conversations of Mr.

Bagriunder the homicide authorization as well as the status of that homicide investigation. [20] In June and August 2015, counsel for the PPSC replied to this request and advised: 1. An unsealing order had been obtained by the Provincial Crown with respect to the Authorization (Project Chillin) so the FederalCrown could review it. After review, the Federal Crown advised it was not relevant and refused to disclose it. 2. The balance of the items sought by Mr. Bagri were not in the possession of counsel for the PPSC. [21] Mr.

Bagri filed his application for disclosure of the information set out in paragraph 2 pursuant to R v Stinchcombe (SCC), [1991] 3 SCR 326, or in the alternative R v O'Connor, (SCC), [1995] 4 SCR 411. All parties wereserved. The Provincial Crown advised the Federal Crown it would not appear at this stage of the application, but joined in thesubmissions of the Federal Crown and the Calgary Police Service. Poitions of the Parties [22] Mr. Bagri submits the information he seeks is first party disclosure because information from the homicide investigation wasused in Project Alderman. [23] The position of Mr.

Bagri is that the materials he seeks from the homicide authorization are relevant under two bases: 1. “It seems that the information is in the possession of the CPS and that device installed by police to intercept privatecommunications pursuant to an Authorization during the homicide investigation were used to intercept the Applicant’s privatecommunications during Project Alderman investigation.

It also appears that private communications of the Applicant were beingintercepted prior to the grant of PA 1658 and that the Applicant was linked to persons being investigated for drug trafficking activity inProject Duplicity as a result of the homicide investigation. The Applicant suggests that Project Alderman is a continuation or expansionof the drug investigation started as Project Duplicity.” 2. An Authorization is a search, and a constitutional search must be implemented in a reasonable manner.

Because Project Aldermanintercepted calls pursuant to two audio probes installed under the Project Chillin authorization, the materials he seeks are relevant todetermine whether the installation in Project Chillin was implemented in a reasonable manner. This in turn will allow Mr. Bagri todetermine whether any intercepted conversations under Project Alderman are constitutional. [24] The Federal Crown, the Calgary Police Service and the Provincial Crown oppose Mr. Bagri’s application. The position ofthese parties is twofold: 1. The materials sought by Mr.

Bagri are third party materials because the PPSC is not in possession of them. Thus, Mr. Bagri’sapplication is governed by R v O’Connor. 2. The information sought by Mr. Bagri is not “the fruits of the investigation” and therefore not producible pursuant to Stinchcombe. Analysis [25] As is often the case, the parties do not disagree upon the law that governs the application; rather it is the

interpretation andapplication of the law that is the issue. The parties agree the law in R v Stinchcombe, R v McNeil, 2009 SCC 3 , [2009] 1 SCR

66 and R v Quesnelle, 2014 SCC 46 , [2014] 2 SCR 390 and other related decisions apply. [26] The court in McNeil described that case as providing “... an appropriate context within which to reiterate the respectiveobligation of the police and the Crown to disclose the facts of the investigation under R v Stinchcombe...” Five years later, R v Quesnellespoke again to the principles that govern disclosure. [27] The principles I take from McNeil and Quesnelle respecting Crown disclosure in the context of this application are these: 1. “The Crown has a broad duty to disclose relevant evidence and information to persons charged with criminal offences.

Stinchcombeat pp. 336-340 provides that the Crown is obliged to disclose all relevant, non- privileged information in its possession or control so as toallow the accused to make full answer and defence.” Quesnelle at para 11. This is commonly referred as to first party disclosure. 2. There is a corollary duty upon police investigators to disclose to the Crown all relevant materials in their possession pertaining tothe investigation of the accused. McNeil at para 23. 3.

For the purpose of first party disclosure the “Crown” does not refer to all Crown entities- the Crown is the prosecuting Crown. “Allother Crown entities, including police, are ‘third parties’.” Quesnelle at para 11 and McNeil at para 22. 4. The Stinchcombe regime only applies to materials in the possession or control of the prosecuting Crown. McNeil at para 22. 5. Records in the hands of third parties, including Crown entities, are not generally subject to the Stinchcombe disclosure rules withthe exception of the police duty to supply the Crown with the “fruits of the investigation”. 6.

The Crown obligation to disclose is not absolute and the Crown is not obliged to disclose information which is clearly irrelevant,privileged or otherwise governed by law. McNeil at para 18. 7. The prosecuting Crown has a duty to make reasonable inquiries when put on notice of material that is potentially relevant. McNeilat paras 13, 48-51. 8. An O’Connor application is the procedure to be used to seek the production of any “likely relevant” information in the hands of athird party.

McNeil at para 25 states that “ production of criminal investigation files involving third parties usually falls to be determinedin the context of an O’Connor application unless such information is in some way related to the accused’s case”. 9. As McNeil said at para 53, the difficulty “lies in identifying the contours of relevance for the purposes of the police’s first partydisclosure obligations.” [28] In R v Jackson 2015 ONCA 832, the court set out two factors to consider in determining whether the Stinchcombe orO’Connor regime governs production.

The court said at paras 91-93: Two principal factors determine the disclosure production regime that will apply when an accused seeks disclosure of something theCrown has not provided. The first has to do with the nature of the information of which disclosure/production is sought. The secondconcerns who is in possession or control of that information. Turning first to the nature of the information. The descriptive “fruits of the investigation” accurately captures the subject-matter of firstparty Stinchcombe disclosure.

The term embraces relevant, non-privileged information related to the matters the Crown intends to adducein evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist anaccused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative ofmaterial events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.

In its normal, natural everyday sense the phrase “fruits of the investigation” posits a relationship between the subject-matter sought andthe investigation that leads to the charges against an accused. It refers to information acquired by means and in consequence of thatinvestigation. The information includes, but is not co-extensive with, evidence, much less admissible evidence. See also R v Coopsammy 2008 ABQB 266. [29] It is clear the materials sought by Mr. Bagri are in the hands in two third parties- the Provincial Crown and the Calgary PoliceService.

In addition, the Court is in possession of the sealed applications and Affidavits in support of the Project Chillin authorizations:see s 187 of the Criminal Code of Canada. The materials are not in the possession of the prosecuting Crown- the PPSC. [30] I cannot find the material Mr. Bagri seeks to be “fruits of the investigation” of Project Alderman. [31] The materials establish that Mr. Bagri was a person of interest in a 2009 homicide. [32] The information provided by Det. Fleet to Cst. Soetaert was that on December 3, 2010, Det. Fleet received information thatMr. Bagri and Mr. Dhillon where together at a bar.

As a result of that information, Det. Fleet arranged to have the Strike Force Unitsurveil Mr. Bagri and Mr. Dhillon. This surveillance continued until February 14, 2011. [33] In late 2010, early 2011, DUST 40s made a number of drug buys that allowed them to infer they were dealing with the anorganization that moved three to five kilograms of cocaine per month on to the streets of Calgary and surrounding areas. This project wascalled Project Duplicity. It appears that Mr. Bagri and Mr. Dhillon came to the attention of the police in Project Duplicity. [34] Project Alderman began in August 2011.

It utilized the locations from the December 2010-February 2011, Strike Force Unitsurveillance as a basis to conduct surveillance by its surveillance team, the Alert Surveillance team, on Mr. Bagri beginning in August,2011.

[ 35 ] The only evidence of “crossover” between the homicide investigation and Project Alderman, before Project Alderman obtained PA 1658, was the December 3, 2010- February 2011 Strike Force Unit surveillance information. [ 36 ] This “crossover” does not establish a relationship between Project Alderman and Project Chillin such that I can conclude the material sought by Mr. Bagri from Project Chillin is the “fruits of the investigation” of Project Alderman.

The crossover information, which was approximately six months old when utilized by Project Alderman, was used to establish a link to a location to begin to surveil Mr. Bagri. There is no evidence of any further association between Project Alderman and the Authorization and materials sought by Mr. Bagri in Project Chillin. This is not a case where, for example, the Project Alderman Authorization depended substantially on the fruits of the Project Chillin Authorization. [ 37 ] Other than Mr.

Bagri himself, there is no basis to find a factual or evidential link between Project Alderman and the Authorizations and supporting affidavits in Project Chillin. The Project Chillin materials have no link to the offences which Mr. Bagri is charged. [ 38 ] Mr. Bagri submits that regardless of the above, a factual link between Project Alderman and Project Chillin was created after PA 1658 was granted because Project Alderman utilized the same audio probes installed earlier under Project Chillin. [ 39 ] Mr.

Bagri submits this link requires disclosure of the Project Chillin materials so that he may assess whether the search, that being the installation of the probes, was reasonable. [ 40 ] I cannot accept Mr. Bagri’s submission that materials from an unrelated investigation, which I have found are not “fruits of the investigation” become “fruits of the investigation” because the two investigations utilize the same audio probes. Conclusion [ 41 ] In conclusion, I find the materials sought by Mr. Bagri are not first party records governed by the Stinchcombe regime.

Heard on the 16 th day of December, 2015 and January 21, 2016. Dated at the City of Calgary, Alberta this 1 st day of March, 2016. E.A. Hughes J.C.Q.B.A. Appearances: Mr. Richard Cairns, Q.C. for the Applicant/Accused Mr. Scott Couper for the Respondent/Crown

Ms. Donna Spaner for the Third Party Calgary Police Service